The New ASPA Code of Ethics

It came to my attention in an interview with Professor James Svara, for a paper I am writing for the journal Public Integrity, that in March 2013, the American Society for Public Administration (ASPA) made substantial — sometimes beneficial, sometimes harmful, sometimes baffling — changes to its Code of Ethics (the revised code is attached; see below). This post will look at the changes that involve conflicts of interest.

Personal Interests
The provision "Subordinate institutional loyalties to the public good." has been changed by adding that "personal interests" should also be subordinated to the public good. It is valuable to recognize that personal interests are just as problematic as institutional loyalties with respect to undermining the public interest.

However, this is to some extent itself undermined by the change to the principle under which this provision (known as a "practice") appears. Added to the principle were the following words, "put service to the public above service to oneself." This makes it appear that by "personal interests," the code means only what would benefit oneself. Personal interests go far beyond this, including actions that would benefit anyone who has a special relationship with an official as well as actions that may benefit oneself indirectly or indefinitely.

Misuse of Office
The new provision, "Guard against using public position for personal gain or to advance personal or private
interests," is oddly worded. It's good to see the language of "gain" (although I prefer "benefit") rather than "interest." But it is immediately followed by the language of "interest," without any guidance about how they differ in practice. Similarly, what is the difference between "personal" and "private" interests? And whose gain or interests are intended? The official's alone, those with whom the official has a special relationship, or anyone's?

Finally, what does it mean to "guard against" the misuse of public position? Does this mean to guard the public against one's own misuse of position? If so, this is an odd way to put it. This is the right idea. But it would be nice if it were made clear that the best way to guard the public against one's misuse of office is to seek professional ethics advice because, as the code recognizes elsewhere, there are often strong pressures on one to misuse one's office or let others do so, and also because every individual has blind spots when it comes to situations that may benefit themselves or others who are special to them.

Reporting Ethical Misconduct
Most government employees lack the authority and opportunity to deal irresponsibly with conflicts of interest, beyond the misuse of government property. Their most important role in a government ethics program is to report ethical misconduct they are aware of, usually misconduct by their superiors or by elected and appointed officials. Employees know what's going on, but they take a risk reporting it and reporting is highly discouraged in many ethics environments.

This is why it is great to see the ASPA adding a new provision on reporting ethical misconduct. Here it is:

Seek to correct instances of wrongdoing or report them to superiors. If remedies cannot be assured by reporting wrongdoing internally, seek external sources or agencies for review and action.

This appears to derive from lawyer's Rules of Professional Conduct or what is common in corporations: report misconduct up the chain of command, and only report it out of the organization if nothing is done. The problem with this is that it does not recognize the existence of government ethics programs. Therefore, it gives no hint whether they are considered internal or external. They are certainly external to bureaucratic channels, but they are not external to the government itself.

It is very hard for an employee to approach a superior whom he believes is involved in, or aware of and silent about, an instance of ethical misconduct. It is much easier to contact an ethics officer or call a hotline. Especially when an ethics code requires officials and employees to report misconduct, which is a best practice, this should not be countered by an ASPA rule that says otherwise. The existence of ethics programs and duties to report misconduct should be acknowledged by this provision.

Resisting Pressures
The new provision, "Resist political, organizational, and personal pressures to compromise ethical integrity and principles and support others who are subject to these pressures," is a valuable one. It acknowledges the pressures that make it so difficult for individuals in any organization, but especially in one with an unhealthy ethics environment, to act ethically, especially in the discussion, prevention, and reporting of ethical misconduct. It is especially good to see the recognition of how important it is to support others subject to the same pressures, especially one's subordinates.

Encouraging the Adoption of Ethics Codes
It is good that the ASPA has encouraged its members to seek the adoption and review of ethics codes. My one quibble with this is that it would have been better to encourage the adoption of ethics programs, since codes without training, advice, disclosure, and enforcement cannot be nearly as effective.

The new version of this provision is not an improvement:

Encourage organizations to adopt, distribute, and periodically review a code of ethics as a living document that applies principles of this code and other relevant codes to the specific mission and conditions of the organization.

Most of the principles of the ASPA code, although highly valuable, are not relevant to what is called a "code of ethics" by government organizations. Therefore, the new language effectively calls for a completely different kind of code than those that currently exist. The ASPA appears to be calling for a fundamental change in government ethics programs.

In addition, the new language emphasizes "the specific mission and conditions" of each organization, without providing a hint of what this means. Does this mean that a big city has a different mission and different conditions than a town? Does this mean that southern cities or diverse cities have a different mission and different conditions than northern cities or less diverse cities? Or does it mean that a city has a different mission and different conditions than a transit authority? And if so, how would this affect an ethics program? Would a diverse city require more or less disclosure? Would a hotline be inappropriate in the east, but just right for the west?

The most important factor that differentiates local ethics programs is state law. Beyond this, the two biggest differences in governments of the same type (local, state) are resources and the frequency of conflicts. Conflicts are more frequent in small towns, but these towns have fewer resources for the creation of an effective ethics program. But these towns have the choice to join together in a countywide program such as that in Palm Beach County, FL, or in a regional program, to cut costs and allow for an ethics commission, with staff, that will be truly independent.

But the ASPA is not really talking here about conflicts. It's talking about everything. It envisions a completely different kind of ethics code than those that exist. It is really talking about what are referred to commonly referred to as "codes of conduct." But it doesn't want to acknowledge the real world, where "ethics codes" involve conflicts of interest and, when they go beyond that, run into serious enforcement issues.

Accountability
The ASPA code has another provision that encourages its members to create an ethics code or program, but this one speaks in terms of accountability, implying more emphasis on enforcement than the provision on adopting an ethics code.

This provision used to read, "Establish procedures that promote ethical behavior and hold individuals and organizations accountable for their conduct." In a surprising move, the new version scraps the part about promoting ethical behavior, replacing it with "and support these procedures with clear reporting of activities and accomplishments."

Administrative ethicists have long criticized conflicts of interest codes for their negativity. The idea of promoting ethical behavior emphasizes a more positive approach. I think it's valuable to have both the positive and the negative. I don't see why the positive phrase was scrapped.

The new phrase baffles me. It speaks of reporting, but doesn't say what needs to be reported. In fact, without the part about "ethical behavior," this provision doesn't even seem to be about ethics anymore, only about accountability. Perhaps that's the point. The provision is now about transparency, it appears. But there's already a lot in the code about transparency. I just don't understand this new provision. I hope administrators will.

Disclosure and Withdrawal
To the old provision, "Zealously guard against conflict of interest or its appearance," has been added the sentence, "Disclose any interests that may affect objectivity in making decisions and recuse oneself from participation in those decisions."

With respect to the old provision, I once again think that "guard" is not the right word. In fact, even moreso. There is nothing wrong with having pre-existing conflicts of interest. A procurement official is most likely going to have a relative whose company bids on a contract. This cannot be guarded against. However, it can, and should, be dealt with responsibly.

This is where the new part of the provision comes in. It should not have been added to the old provision. It should have replaced it. The important thing, with respect to a pre-existing conflicting interest, is to disclose it and withdraw from participation in any matter that may affect that interest ("withdraw" is preferable to "recuse," because "recuse" is a judicial term that means nothing to most people and is too often treated as being limited to voting).

Most problematic in the new part of the provision is defining a conflicting interest as one "that may affect objectivity in making decisions." No one believes that a conflicting interest may affect her objectivity in making a decision. In any event, this way of looking at conflict situations provides no guidance, especially when it comes to individuals with whom an official has a special relationship.

In addition, there is no guidance here with respect to the creation of conflicting interest by, for example, accepting a gift. These should be "guarded against," but no one thinks of them as interests. They are benefits, received by oneself or by someone with whom one has a special relationship.

Nothing is said in this provision about when disclosure should occur. There is no mention of annual disclosure, and there is no mention of when a conflict should be disclosed and withdrawal occur.

And, finally, withdrawal is defined as only involving decisions, not the influence of decisions or the many steps that lead up to a decision.

These last two problems come together in the following question:  Should the procurement official work on specifications for a contract he has reason to believe his sister will be bidding on? Should he wait until she actually makes a bid before he withdraws? Should he have any communications with the bid committee or with anyone who is involved in making decisions with respect to the contract?

It's great that the ASPA is finally acknowledging the importance of disclosure and withdrawal, but this provision should be considered only a preliminary attempt to deal with these issues that are so central to dealing responsibly with conflicts. The ASPA can do much better.

Favoritism
An old provision about acting without partisanship was expanded to include acting without favoritism. It is valuable to remind administrators that partisanship, although the principal sort of favoritism that has fueled the move toward nonpartisan local government, is not the only kind of favoritism. Although this term is vague, it is so unspecific that it appears to be less guidance than a reminder of the inappropriateness of favoritism.

Confidential Information
A new provision was added that requires administrators to "Respect and safeguard protected and confidential information." There are two problems with this provision. One is that without defining "confidential information," this could be considered any information that the administrator, elected officials, or a government attorney choose to consider confidential, even if it should not be confidential, that is, even when it involves hiding from the public information that is legally public or that could legally be considered confidential, but is being withheld not for legal reasons, but rather to hide information or activity from the public. This is especially true of what occurs in executive meetings that deal with matters that should have been dealt with in public meetings, but are shoehorned into the rule due to the presence of an attorney or the discussion of litigation.

It is difficult, in practice, to square this new provision with the old (and still current) provision, "Recognize and support the public's right to know the public's business." Where does "the public's business" end and "confidential information" begin?

Dissent
One minor, but interesting change relates to the consolidation of the code's two dissent provisions. In doing so, the word "legitimate" before "dissent" was dropped. This is good, since what may appear to a supervisor to be illegitimate dissent may be very legitimate indeed.

Robert Wechsler
Director of Research-Retired, City Ethics

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